2 Mills Surr. 502 | N.Y. Sur. Ct. | 1902
— This is a question of tbe construction of a will.
Tbe will devises tbe property to tbe executors, wbo' were two of testatrix’s daughters, in trust to bold “ until my son George Early attains tbe age of twenty-one years; then tbe property to be sold and tbe proceeds of sucb sale to be derided among tbe surviving children or their heirs, share and share alike.”
Annie Radford, one of the executors, subsequent to the testatrix’ death, purchased the share of her brother, James Early; this brother died unmarried and without issue before George Early became twenty-one years of age.
Margaret Mulligan, the other executor, was removed as such for misconduct, and now contends that under tbe will tbe remainder was simply a contingent one that did not vest until tbe period of distribution, and that, therefore, the assignment of James J. Early of his interest was ineffectual.
As a general rale bequests to a class mean the persons in existence at the time of the death of the testatrix; the addition in this will of the words “ or their heirs ” plainly shows that the testatrix contemplated the contingency of some of the children dying between her death and the period of distribution and was a provision that in such event their heirs should take. This shows a plain intention to make the estate vest immediately upon testatrix’s death.
Counsel contends that these words should be regarded as sur-plusage, but if, as I have held, they show that they were used as an evidence of the testatrix’s intent, they are very important.
The case is plainly within the cases of Matter of Mahan, 98 N. Y. 372; Goebel v. Wolf, 113 id. 405.
This being the only objection to the decree proposed by the executrix I will sign the same in the form proposed.
Decreed accordingly.